A Comparison of the President and Governor in the Lawmaking Process

aptopix_trump_south_korea_20425By Thomas Nussbaum and Chris Micheli

Of interest to those involved in the legislative process, we can learn important points from understanding the role of the chief executive at the federal and state levels and his or her role in enacting legislation at both levels of government. The value in looking at the two chief executives is to better understand the role of the executive branch in the lawmaking process.

Fundamentally, both the U.S. President and the California Governor draw their authority from the federal and state constitutions concerning their respective roles in the lawmaking process.  Federal and state statutes also provide additional duties and responsibilities for the chief executives in the adoption of laws. Their respective roles are similar regarding the legislative and budget processes, even if some of the specifics differ. Appreciating these similarities and differences will help observers better understand the role of the chief executive.

The executive branches of the state and federal governments play similar roles, but they also have different aspects, as we briefly discuss below. Obviously, the Governor and executive branch of state government are based upon their federal counterparts. In broad terms, both federal and state chief executives are involved in the lawmaking process in that they propose and ultimately sign budgets, they sign or veto legislation, and they make appointments of executive branch employees who interpret and administer the laws.

Screenshot 2017-11-23 at 07.48.57Both the President and the Governor make major policy addresses to their respective legislative bodies (e.g., the State of the State speech each January by the Governor and the State of the Union speech each January by the President) that establish the priorities of the chief executives. With these speeches, the President and Governor outline their major policy initiatives for the upcoming legislative term, as well as their major budget priorities. As a result, these speeches help direct legislators by understanding the wishes of the chief executive.

One difference is that the Governor can call the Legislature into extraordinary session to address specific issues, such as a natural disaster, a budget crisis, or some other high profile public policy issue. However, no such authority rests with the President. Because the Governor can call legislators into special session, this is a clear way for the Governor to prioritize an issue and help dictate the ultimate outcome of the legislation needed to address that policy issue.

The President and Governor propose their respective budgets for the operation of the federal and state governments, which are reviewed and modified by the legislative branch. The Governor (through the Department of Finance – DOF) actively participates in the Legislature’s review and adoption of the State Budget by providing details and analysis of the Governor’s budget priorities. Similarly, the President (through the Office of Management and Budget – OMB) attempts to persuade the Congress to adopt his or her budget proposals by working interactively with both houses of Congress to advance the President’s spending priorities.

California law gives the Governor significant authority to reduce or control expenditures, especially with respect to the executive branch of government. More important, the State

Constitution (Article IV, Section 10(e)) provides the Governor with “line item veto” authority—meaning the Governor can reduce or eliminate any of the thousands of individual appropriations made in the annual Budget bill. This authority makes the Governor very powerful in budget negotiations because he or she can reduce or eliminate budget appropriations. As such, the Governor truly has the final say over budget expenditures in this state.

Other provisions of law give the Governor authority to reduce or control expenditures during the Budget year—especially with respect to agencies under the Governor’s control. Through proposed funding, budget control language, and item veto authority, the Governor can encourage or discourage policymaking by particular agencies, as well as influence legislative authority over those agencies. Moreover, the Governor can use personal persuasion and positive or negative publicity to goad agencies into action.

Similarly, the President is required to annually prepare and submit a comprehensive federal budget to Congress for the fiscal year that begins on October 1 (31 U.S.C. 1105). The President sets out his priorities and proposes policy initiatives in the federal budget soon after Congress convenes in January. Unlike the Governor, the President does not have line-item veto authority. This fact creates more of a level playing field between the executive and legislative branches of government in the final adoption of the federal budget.

OMB is the implementation and enforcement arm of Presidential policy with the following major functions that it performs: budget development and execution; coordination and review of all significant federal regulations by executive agencies, to reflect Presidential priorities; and, legislative clearance and coordination (review and clearance of all agency communications with Congress, including testimony and draft bills) to ensure consistency of agency legislative views and proposals with Presidential policy. The Governor’s DOF has similar duties, but not quite the level of power vested with the OMB. The OMB plays a critical role in the legislative and budget processed because of its broad portfolio.

As part of the lawmaking process, both the President and Governor meet with legislative leaders (especially those of his or her same political party) in attempts to reach compromise on major legislation, as well as the initial introduction of executive branch priorities that need legislation. The chief executives also meet and communicate with individual legislators in attempts to secure their votes or reach compromise on pending bills. And the President and Governor bring legislative leaders together with major stakeholders to discuss and fashion legislation in an effort to ensure their views are included in their final versions of bills.

For priority issues, both the President and Governor propose specific legislation that a member of the legislative body then carries on behalf of the chief executive. In California, the Governor may even propose specific legislation to take to the voters via the initiative route. This can be accomplished through legislation (which requires a 2/3 majority vote of both houses) or the collection of signatures to place the measure on the statewide ballot. This avenue of a ballot measure is not available to the President. So, he or she can only work directly with Congress on legislation. Taking a measure directly to the people for a vote is not an option at the federal level.

Nonetheless, similar to the Governor at the state level, while the President does not have the direct power to enact federal statutes, he or she has considerable authority to move and influence legislation. The President has the power to recommend legislation by virtue of Article II, Section 3 of the Constitution (“such measures as he shall judge necessary and expedient” and “give to the Congress information of the state of the union”). The President, through a member of Congress, can introduce legislation. The Administration frequently drafts the text of its legislative proposals which are then introduced by leaders/members of the President’s party.

In terms of final actions on legislation, the President has a “pocket veto” (i.e., a bill is vetoed if it is not acted upon during the required period of time), as opposed to a “pocket signature” rule that exists in California (i.e., a bill becomes a state law if the governor does not act upon it within the required period of time). The President and Governor have a specified period of time in which to sign or veto legislation sent to his or her desk. Neither chief executive utilizes this approach very often, but it is still available if needed.

As you can see in this brief overview, both chief executives place a crucial role in the lawmaking process at the federal and state levels of government. As a co-equal branch of government, the President and Governor must approve legislation passed by the legislative branch of government. Because of this important role, the chief executive can often dictate the ultimate outcome of legislation and fashion bills in a form acceptable to them.

Thomas Nussbaum is the former Chancellor of the California Community Colleges. Chris Micheli is a lobbyist with Aprea & Micheli, Inc. Both are Adjunct Professors of Law at McGeorge School of Law.

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